KHVPF Insight
Proposed Senate Bill Requires Michigan Employers to Prepare, Disclose Job Descriptions Upon Demand
With its newly seated trifecta — Governor, House, and Senate — Michigan Democrats have been busy enacting legislative measures aimed at widening protections for employees. Most notable thus far has been a repeal of Right-To-Work and reenactment of Michigan’s Prevailing Wage Law. But further changes may be coming during the legislative session. Recently, Senator Mallory McMorrow — joined by six other Democratic senators — proposed Senate Bill 142, which would amend the Bullard-Plawecki Act to “require preparation and disclosure of job descriptions and other information regarding certain positions.” There is little to explain the reasoning behind this proposed bill, apart from Senator McMorrow’s statement that SB 142 is intended to “increase transparency between employees and employers and protect from potential predatory practices.” While this bill, if enacted, would appear to be unique among American states, it is like
European-style laws such as the European Union’s Written Statement Directive and the United Kingdom’s Employment Rights Act.
As written, the proposed Michigan bill will require the creation and maintenance of job descriptions for every job listing:
• A list of the essential duties and responsibilities.
• A description of the skills, training, and effort required to perform the job.
• The working conditions and schedule under which the job is performed.
• Salary information, including the pay scale, if any.
The employer would have to provide this job description to any job applicant “during the recruitment, hiring, or promotion process” and to an “employee upon request.” Further, the proposed law would not allow an employer to “apply” a revised job description to an employee “until the employee has been given an opportunity to review and initial the revised job description.” It is this provision that is particularly concerning in its ambiguity; a restriction on an employer’s ability to “apply” a job description suggests that an employer might violate Bullard-Plawecki by assigning an employee duties not set forth in their existing job description. For small businesses in particular, this could interfere with an employer’s flexibility to assign employees to deal with novel issues that arise in the workplace, if not previously spelled out in a job description. And Bullard-Plawecki provides penalties for non-compliance including actual damages, costs, potential attorney’s fees, and an additional $250 fine for willful violations.
That said, the Senate Bill does not purport to limit how broadly duties could be defined — and, in this sense, the risk of the “application” provision might be easily avoided with careful drafting. For instance, if a job description lists as a duty “the performance of all other tasks to be assigned in the sole discretion of management,” then presumably novel or unusual job duties could be assigned without risking a violation. In this
sense, the bill may be much like so-called “Pay Transparency” laws (enacted in New York and elsewhere) that require the disclosure of salary ranges without mandating how large those ranges may be. As recently reported by Forbes magazine, some employers have taken to listing extremely wide salary ranges that technically comply with the requirement, but disclose little about actual salaries for employees.
Ultimately, whether or not Michigan mandates job descriptions, job descriptions are often helpful tools for protecting an employer from liability in employment-based lawsuits. For instance, a job description containing objective minimum qualifications may create a legitimate, nondiscriminatory reason to deny a job applicant lacking those skills a position. Job descriptions can also help define essential functions of a job, which may be relevant to claims under the Americans with Disabilities Act. But employers should think carefully about the language used in those job descriptions to avoid the appearance of discriminatory animus. For instance, a job that requires an employee to travel from place to place around a facility might require “movement” rather than “walking,” thus covering potential employees who use a wheelchair or other mobility aids.
Thus, while KHVPF will monitor these proposed changes to Bullard-Plawecki, the bill itself should provide all employers with a reminder of the issues that may arise if they provide written job descriptions and to reevaluate those descriptions for potential benefits or risks.